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Current laws fail to protect parties making agreements relating to their frozen embryos. Courts using the contractual approach to Assisted Reproductive Technology litigation must carefully examine these so-called agreements to determine whether they are valid in a divorce context.

In 2002, there were approximately 346,000 frozen embryos in the United States1. By 2017, the number of frozen embryos grew to approximately 1,000,0002. People are turning to assisted reproductive technologies (ART) at an exponential rate. Yet, as so often happens when technology accelerates at lightning speed, the law is slow to catch up.

Take the scenario of a married couple who have trouble conceiving and use in vitro fertilization (IVF). The couple is under extreme stress, both emotionally and monetarily. At the fertility clinic, they are given a stack of paperwork six inches thick. One of the forms is a lengthy questionnaire about the disposition of any remaining frozen embryos. One of the questions states “In the event the patient is divorced any remaining frozen embryos will, A) Be awarded to Wife, B) Be awarded to Husband, C) Be donated to research, D) Be donated to another couple, or E) Be destroyed.” The Wife fills out the form; checks the box that the embryos will be awarded to her; and the Husband signs. The couple has no actual discussion about this issue nor do they receive any legal explanation or advice.

The couple successfully has one child and six remaining frozen embryos. Then they get divorced. Husband is adamant that he does not want Wife to be able to use the remaining frozen embryos as he does not want more children with Wife. Wife wants more biological children. She argues that because Husband signed the form, she should be awarded the embryos. Further, Wife argues Husband would not be the legal “father,” although the form makes no mention of the conditions that would determine whether Husband is the legal father.

The Contractual Approach to Assisted Reproductive Technology Litigation (ART)
State courts are trending towards a “contractual” approach for deciding the complex problems presented by this scenario. Under this common approach, Wife would be awarded the embryos because the parties had an agreement (the form where Wife checked a box at the fertility clinic). In fact, a similar scenario is presently before the Supreme Court in the case of Bilbao v. Goodwin. In adopting this contractual approach, courts have shown a preference toward honoring agreements between parties.

“… parties should be encouraged in advance before embarking on [in vitro fertilization] to think through possible contingencies and carefully consider their wishes in writing. Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of litigation are simply incalculable…to the extent possible, it should be the progenitors – not the State and not the court – who by their prior directive make this deeply personal life choice.”

Courts in California, New York, New Jersey, Tennessee, and Illinois have all made rulings consistent with the contractual approach to ART agreements. The trend is that these very personal decisions should be made by the parties involved – not the court.

Should ART Agreements Be Binding in Divorce?
In theory, honoring the parties’ ART agreements seems like a sensitive and practical approach to resolving such weighty emotional issues. But is simply having an “agreement” enough? What if the parties are not having serious discussions about the implications of their decisions because they are highly emotional or rushed because of medical concerns? What if the parties are filling out hundreds of pages of forms? What if the forms are not explicit and do not address fundamental issues like whether the Husband will be treated as the legal father of any resulting children in the event of a divorce?

It is unlikely that a layperson could truly comprehend the complex legal implications of everything they must sign when seeking IVF. Courts are trending toward the contractual approach, but so far, they have not delved deeper to discuss whether parties should meet certain requirements to create a valid agreement.

This is in stark contrast to laws surrounding gestational surrogacy contracts. Many states have adopted statutes obliging parties to meet a long list of requirements to have a valid surrogacy contract. For example, statutes require the parties to be represented by independent legal counsel, to notarize signatures, and for two witnesses to sign the agreement. The list of requirements can be lengthy and onerous.

Legislatures have reacted swiftly to enact these comprehensive gestational surrogacy laws after several high-profile cases received widespread media attention. Unfortunately, there has been no such widespread attention to the disposition of frozen embryos. The lack of guidance is all the more striking because IVF is so much more common than gestational surrogacy.

State Courts Must Weigh-In on What Constitutes a Valid ART Agreement
Legislatures and courts should treat the disposition of frozen embryos more like surrogacy agreements and put safeguards in place to protect the populace. Although this would place a greater burden on parties using IVF, it would also ensure that the most fundamental rights of the parties are protected: the right to be – or not to be – a parent. Parties should be advised of the consequences of their ART agreements regarding the disposition of embryos upon divorce and whether the Husband (or partner) would be the legal parent of any resulting children after divorce.

Bright-line laws could also limit litigation. For example, the Uniform Parentage Act (Uniform Law Commission 2017) suggests the following law: “Section 706(a). If a marriage is dissolved before placement of eggs, sperm or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce, the former spouse would be a parent of the child.” This Act only governs whether a spouse is considered a parent and does not dictate who may control embryos after a divorce. Nonetheless, such legislation provides much-needed guidance to couples considering IVF.

Until state legislatures actually change the law, if courts are to use the contractual approach to Assisted Reproductive Technology litigation, then they have a responsibility to look at parties’ so-called agreements more closely. Statutes are often a codification of case law. Therefore, State courts should start to weigh-in on what constitutes a valid agreement over frozen embryos rather than stopping their inquiry as soon as they see a signed form with a checked box. This would ensure parties meet the Kass court’s goal that parties have serious and lengthy discussions over this “deeply personal life choice.”